Joint and Several Liability Act

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Joint and Several Liability Act

Summary

ALEC’s model Joint and Several Liability Act provides that each defendant is liable only for damages in direct proportion to that defendant’s fault. The Act also provides for consideration of fault of non-parties when assessing percentages of fault. Joint liability is imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious Act.

Model Legislation

Section 1. {Title}

This Act shall be known and may be cited as the Joint and Several Liability Abolition Act.

Section 2. {Definitions}

The following words, as used in this Act, shall have the meaning set forth below, unless the context clearly requires otherwise:

(A) “Damages” means pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, any other theory of damages such as fear of loss or illness or injury, loss of earnings and earning capacity, loss of income, medical expenses and medical care, rehabilitation services, custodial care, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, loss of business or employment opportunities, and other objectively verifiable monetary losses. It does not include any punitive damages.

(B) “Fault” means an act or omission of a person that is a proximate cause of injury or death to another person or persons, damages to property, tangible or intangible, or economic injury, including, but not limited to, negligence, malpractice, strict liability, absolute liability, or failure to warn. Fault shall not include any tort that results from an act or omission committed with a specific wrongful intent.

In any action for personal injury, property damage accompanying personal injury, or wrongful death, the liability of each defendant for damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the court, with regard to each defendant, shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant’s fault, and that amount shall be the maximum recoverable against said defendant.

Section 4. {Fault of nonparties}

(A) In assessing percentages of fault, the trier of fact shall consider the fault of all persons who contributed to the alleged injury or death, or damage to property, tangible or intangible, regardless of whether said person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice within 120 days of the date of trial that a nonparty was wholly or partially at fault. The notice shall be given by filing a pleading in the action designating such nonparty and setting forth such nonparty’s name and last-known address, or the best identification of such nonparty that is possible under the circumstances, together with a brief statement of the basis for believing such nonparty to be at fault.

(B) Nothing in this Act is meant to eliminate or diminish any defenses or immunities that currently exist, except as expressly noted herein. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of named parties. Where fault is assessed against nonparties, findings of such fault shall not subject any nonparty to liability in this or any other action, or be introduced as evidence of liability in any action.

Section 5. {Concert of action}

Joint liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly liable under this Section shall have a right of contribution from his fellow defendants acting in concert. A defendant shall be held responsible only for the portion of fault assessed to those with whom he acted in concert under this Section.

Section 6. {Burden of proof}

The burden of alleging and proving fault shall be upon the person who seeks to establish such fault.

Section 7. {Limitations}

Nothing in this Act shall be construed to create a cause of action. Nothing in this Act shall be construed, in any way, to alter the immunity of any person.